CHELLISE L. SEXTON & Another v. WELLFLEET HOUSING AUTHORITY & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-260

CHELLISE L. SEXTON & another 1

vs.

WELLFLEET HOUSING AUTHORITY & others. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs Chellise L. Sexton and Kevin M. Sexton filed

this action in Land Court to establish their record title to a

parcel located at 324 Old Kings Highway in Wellfleet (locus) and

thus to obtain a writ of entry. After trial, in a meticulously

detailed decision, a judge ruled that the deed under which the

Sextons claim title does not describe the locus with sufficient

particularity to constitute a valid conveyance. He thus

concluded that the Sextons do not have record title, and that

1 Kevin M. Sexton.

2Town of Wellfleet, Lower Cape Cod Community Development
Corporation, Commonwealth of Massachusetts, Barnstable County,
United States of America, Verizon New England, Inc., and NStar
Electric Company, formerly known as Commonwealth Electric
Company; Wendy Drobnyk and Stephen Soumerai, interveners.
the interveners, see note 2 supra, have a valid easement over

the locus through a chain of title that does not include the

Sextons. On the Sextons' appeal, we affirm the judgment.

Background. We summarize the most pertinent findings of

fact, none of which is claimed to be clearly erroneous.

The Sextons base their claim of title on a 1922 deed from

Laura M. Lamson to Edwin P. Cook. The competing claim of the

Wellfleet Housing Authority (WHA) depends on the 1922 deed's

having been insufficient to convey title to Cook, which, if

true, would mean the locus passed by intestacy to Lamson's

daughter and then, through a series of conveyances and takings,

to the WHA. The WHA in turn conveyed an easement over the locus

to the predecessors in title of the interveners, who use the

easement for access to their nearby registered land.

The 1922 deed from Lamson to Cook, under which the Sextons

claim title, describes a property bounded on the west by King's

Road (now known as Old King's Highway) and on the east by

Covell's Way. For the northern and southern bounds, however,

the deed uses "abutter calls" to property owned by Edwin P.

Cook. 3 The question at trial was whether this deed sufficiently

describes the locus to which the Sextons claim title.

3The judge explained that an abutter call is a reference to
an abutting property. Here, the northern abutter call actually
referred to "property owned by Edwin P. Cook and parties
unknown." The judge did not find, and no party contends, that

2
After trial, the judge found that, at the time of the deed,

none of Cook's properties abutted the locus. The actual

abutters were Sally Newcomb or her heirs to the north and the

heirs of Cornelius Hamblin to the south. Although Cook owned

properties well to the north and the south of the locus, they

did not abut the locus itself. In other words, the judge found,

the abutter calls do not describe bounds to the locus. Rather,

the judge concluded, "the deed describes some other property,

not the locus, and could not be a source of title for the

Sextons."

More specifically, as to the 1922 deed's northern abutter

call, the judge found that at the time of the deed, the closest

land owned by Cook to the north of the locus was a parcel

approximately 425 feet away, separated from the locus by at

least four other parcels. 4 The judge did "not credit the

testimony that [Cook's northern property], removed by at least

four parcels from the locus, served to form the northern abutter

call in the 1922 [d]eed." As to the 1922 deed's southern

the phrase "and parties unknown" adds anything to the requisite
certainty of the property description in the 1922 deed, and thus
we do not discuss it further. We note that Lamson traced her
title to an 1829 deed that did not rely on abutter calls for its
northern and southern boundaries, relying instead on lines
described by monuments, distances, and courses.

4 Cook's parcel in turn was comprised of smaller lots
previously known, in order from south to north, as the Chipman,
Freeman, Hamblen, and Nicholson lots.

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abutter call, the judge found that, at the time of the deed, the

closest land that might have been owned by Cook to the south of

the locus was a parcel previously known as the Alfred Smith lot,

separated from the locus by one parcel. 5

The 1922 deed's description -- an area bounded by Old

King's Highway on the west, Covell's Way on the east, and lands

of Cook to the north and south -- thus encompassed a large area

comprised of six parcels: the locus, four parcels to its north,

and one parcel to its south. But the 1922 deed's description

also fit "with certainty" a parcel, known as the Freeman lot, to

the north of the locus and of the six-parcel area just

described. See note 5, supra. The judge did not find with

certainty that the Freeman lot was the parcel conveyed -- a John

W. Freeman had already conveyed title to that lot to Cook in

1884 -- only that the fit between the 1922 deed and that lot

"serve[d] to demonstrate the patent ambiguities in the

description provided in the 1922 [d]eed."

The judge, having found that the 1922 deed did not

adequately describe the locus, concluded that the Sextons could

not show the superior record title necessary to obtain a writ of

entry. It followed that the Sextons lacked standing to

5 There was some question, which the judge found unnecessary
to resolve, whether Cook had conveyed the Alfred Smith lot to
his (Cook's) son in 1905.

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challenge the validity of the interveners' easement over the

locus and did not prove its invalidity, as was their burden.

Judgment entered accordingly, and the Sextons appealed.

Discussion. "In order to make a valid conveyance of land,

it is essential that the land itself, the subject of the

conveyance, be capable of identification, and, if the conveyance

does not describe the land with such particularity as to render

this possible, the conveyance is absolutely nugatory." McHale

v. Treworgy, 325 Mass. 381, 385 (1950), quoting Tiffany, Real

Property § 990 (3d ed. 1939). In McHale, supra at 385, a deed

conveying 19,340 square feet of land in a certain lot, without

specifying where on that lot the land at issue lay, "described

no land at all and therefore conveyed no land."

Here, the 1922 deed does not describe the locus. The

stated boundaries could be taken to describe a larger, six-

parcel area that includes the locus. But the stated boundaries

also describe with certainty the Freeman lot, which lies to the

north of the six-parcel area. The Sextons make three essential

arguments as to why this ambiguity should not be fatal. 6

6 The judge noted that the location on the ground today of
property described in deeds a century or more old "presents a
question of fact." Bernier v. Fredette, 85 Mass. App. Ct. 265,
268 (2014). See also McHale, 325 Mass. at 384 (for purposes of
tax title statute, "whether an error in the description of land
is [']substantial or misleading['] is commonly a question of
fact"). We nevertheless assume in the Sextons' favor, without
deciding, that whether a description in a deed is sufficient to

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1. Overinclusivity. The Sextons concede that the 1922

deed "describes more land than was owned by [Lamson], creating,

on its face, uncertainty as to what [Lamson] intended to

convey." They contend, however, that "[i]t is long established

in the Commonwealth [that] where the boundaries described in a

deed enclose both property owned by the grantor and property not

owned by the grantor, the deed is effective to convey the

property owned by the grantor included within the larger

boundary description." In short, they assert, "[i]n

overinclusive deeds, the deed conveys what the grantor owns."

This proposition might help the Sextons if the 1922 deed's

description of boundaries were otherwise unambiguous, i.e.,

described only one area of land, and the problem was merely that

Lamson owned only some subset of that area. But the 1922 deed

is ambiguous. And neither of the Massachusetts cases the

Sextons rely on involved an ambiguous boundary description.

The first of these cases, Powell v. Clark, 5 Mass. 355, 357

(1809), holds only that where a deed describes land both by its

boundaries and by its quantity and the two descriptions

conflict, the description by boundaries controls. The deed

conveys the grantor's interest in the land within the stated

render the subject land "capable of identification" (citation
omitted), id. at 385, is a question of law, reviewed de novo.

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boundaries, not any larger (or smaller) quantity of land stated

in the deed. 7 Id.

The second case, Atkins v. Bean, 14 Mass. 404 (1817),

similarly misses the mark. In Atkins, supra at 407-408, there

was no ambiguity in the description of the land, only an error

in describing the precise extent of a debtor's undivided

interest in it. Thus, where a judgment creditor purported to

levy an execution on the debtor's one-seventh interest in the

land but the debtor owned only some lesser interest, the levy

was held good for what the debtor actually owned. 8 Id. at 407.

The Sextons also cite numerous treatises and cases from

other jurisdictions for the proposition that where a deed

describes and purports to convey both land owned by the grantor

and land not owned by the grantor, the deed validly conveys what

the grantor owns. We have carefully examined those authorities,

however, and none of them discusses deeds like the 1922 deed at

issue here, in which a description of a property's boundaries is

not merely overinclusive but also ambiguous.

7 This reflects the hierarchy of priorities governing deed
interpretation. "Descriptions that refer to monuments control
over those that use courses and distances; descriptions that
refer to courses and distances control over those that use area;
and descriptions by area seldom are a controlling factor."
Paull v. Kelly, 62 Mass. App. Ct. 673, 680 (2004).

8 Atkins, supra is not entirely clear whether the debtor
owned a one-eighth interest or a nine sixty-fourths interest.
The point is immaterial for present purposes.

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2. Reference to land grantor owns. The Sextons next argue

that "[a]n imprecise description of land to be conveyed does not

render a deed ineffective if reference to the land actually

owned by the grantor clears up any uncertainty." As with their

first argument, however, the cases they cite for this

proposition do not involve ambiguous boundary descriptions of

the type at issue here. In Hurley v. Brown, 98 Mass. 545, 546

(1868), a buyer sought specific performance of a contract to

convey "a house and lot of land situated on Amity Street, Lynn,

Mass." The seller asserted that the description "would be

satisfied by . . . any house and lot on that street" and was

therefore too vague. Id. But, because the seller owned only

one such house and lot, the court held the agreement

enforceable:

"We think that the presumption is strong that a description
which actually corresponds with an estate owned by the
contracting party is intended to apply to that particular
estate, although couched in such general terms as to agree
equally well with another estate which he does not own.

. . .

"If the party who enters into the agreement in fact owns a
parcel answering to the description, and only one such,
that must be regarded as the one to which the description
refers." (Emphasis added.)

Id. at 547.

But unlike in Hurley, 98 Mass. at 547, here the 1922 deed

did not contain "a description which actually corresponds with

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an estate owned by" the grantor, Lamson. Lamson did not "in

fact own[] a parcel answering to the description, and only one

such." Id. Here, the description corresponded both to a six-

parcel area, within which Lamson owned only one parcel, and to

the Freeman lot, which Lamson did not own in 1922.

To similar effect as Hurley, 98 Mass. at 547, and no more

helpful to the Sextons, is Danforth v. Chandler, 237 Mass. 518

(1921). There, where the seller owned no other land in

Pembroke, an agreement to convey a forty-acre farm in Pembroke

was held enforceable. Id. at 521. The court repeated what it

had said in Hurley, that "[i]f the party who enters into the

agreement in fact owns a parcel answering to the description,

and only one such, that must be regarded as the one to which the

description refers." Id., quoting Hurley, supra. Again, the

principle applies where the seller in fact owns one and only one

parcel answering to the description, which is not true of Lamson

and the 1922 deed here. Thus, contrary to the Sextons'

argument, this case is not "like Hurley and Danforth."

Danforth, 237 Mass. at 522, further states that "[w]hile

the terms of the memorandum cannot be contradicted or varied,

parol evidence is admissible to show what real property the

[grantor] had, and to apply the contract to it." Applying this

same principle to the 1922 deed, Lamson's ownership of the locus

is undisputed, but that does not change the fact that the

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description in the deed does not correspond to the locus. To

interpret that description as applying to the locus would

impermissibly contradict the abutter calls to parcels some

distance away, or vary them by substituting calls to the actual

abutters as of 1922.

3. General principles. The Sextons finally rely on

general principles of deed interpretation to argue that the

ambiguous deed should be interpreted in their favor. "The basic

principle governing the interpretation of deeds is that their

meaning, derived from the presumed intent of the grantor, is to

be ascertained from the words used in the written instrument,

construed when necessary in the light of the attendant

circumstances" (citation omitted). Patterson v. Paul, 448 Mass.

658, 665 (2007). We may assume that Lamson intended to convey

something to Cook -- although the judge found that he could not

ascertain what she intended to convey -- and that her ownership

of the locus was one of the attendant circumstances. "And if

the words used will permit, and if no positive rule of law

prevents, a construction which will accomplish a reasonable

object should be preferred to one which will render the whole

attempt void." Brackett v. Pitcher, 296 Mass. 295, 297 (1936).

But we are not persuaded that those general principles

suffice to overcome the ambiguity here. No doubt the court in

McHale considered them, yet the court nevertheless ruled that a

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deed conveying 19,340 square feet of land in a certain lot,

without specifying where on that lot the land at issue lay, was

insufficient. McHale, 325 Mass. at 385. The McHale court also

relied on Conners v. Lowell, 209 Mass. 111, 122 (1911), in which

descriptions were held insufficient as follows:

"[I]n each [deed] the land was described only by its area
in square feet, more or less, the street and side thereof
on which it was located, and the number of the lot without
reference to any plan. In fact, there was a private plan
on record at the registry of deeds and a plan at the office
of the city engineer, on which the several lots could be
sufficiently identified. This description was
insufficient. . . . [T]he names of no abutting owners were
given, nor was there anything to show the shape of the
parcel. The designation of it by a lot number without
naming the plan or showing where it might be found or
giving any other descriptive circumstance was too
indefinite."

McHale, supra, quoting Connors, supra.

The Sextons also cite the principle that a deed is

construed against the grantor, and "[i]f, therefore, there be

two descriptions of the land conveyed, which do not coincide,

the grantee is entitled to hold by that which will be most

beneficial to him" (citation omitted). Bernard v. Nantucket

Boys' Club, Inc., 391 Mass. 823, 827 (1984). But the 1922 deed

does not contain two descriptions. It contains one ambiguous

description, and each proposed resolution of that ambiguity is

problematic.

Because we agree with the judge that the 1922 deed does not

describe the land with such particularity as to make it capable

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of identification, see McHale, 325 Mass. at 385, we need not

address the Sextons' challenge to the judge's further reliance

on post 1922 actions by interested persons who were not parties

to the deed. And, because the Sextons make no argument that

they still have a viable challenge to the interveners' easement

even if the 1922 deed is invalid, we need not discuss the

easement issue further.

Judgment affirmed.

By the Court (Sacks,
Hershfang & Tan, JJ. 9),

Clerk

Entered: June 23, 2025.

9 The panelists are listed in order of seniority.

12